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A Response to Jack Balkin’s “Sexual Freedom and the Constitutional Text”

In a recent blog post, Yale Law Professor Jack Balkin concedes that the “substantive due process” doctrine used by the U.S. Supreme Court to justify Roe v. Wade (and similar cases) was beside the point. But even while dismissing the Court’s rationale, Balkin says that those sex-related court decisions are valid anyway, because of two other clauses in the Fourteenth Amendment: the Privileges or Immunities Clause, and the Equal Protection Clause. Professor Balkin is sadly mistaken, and I’d like to briefly explain my reasons for saying so. I will focus mainly on Roe v. Wade, because that is the most controversial of the cases in question, but similar arguments apply to most of the related cases. And I will shoot down Balkin’s Equal Protection Clause argument first, because once that argument falls, his other argument (privileges or immunities) collapses too.

So let’s start with the Equal Protection Clause. According to Balkin’s (flawed) argument, decisions like Roe v. Wade can be justified based on women’s equality. Actually, Roe v. Wade disenfranchised women, forbidding them from affecting a policy that deeply impacts women and their values in the most fundamental ways. Generally speaking, women are more pro-life than men, including the seven old men who voted for Roe v. Wade. Many women see abortion as equally useful to men, because men can have more sex without worrying about ever having to pay for years of child support in the event of an unintended pregnancy. Balkin claims that Roe v. Wade forbade “state-enforced compulsory motherhood,” but that characterization is a gross exaggeration. It is true that many states in 1973 did not recognize “rape” as a crime that a husband could commit against a wife, but times have thankfully changed, and divorce is easier too. Nowadays, women in the United States are in no way required to have sex, and no woman is required to become pregnant or to risk pregnancy; therefore, forbidding a woman to discontinue a pregnancy does not in any way compel motherhood. The vast majority of abortions are the result of women freely choosing to take a risk, and many states also now have laws allowing women to abandon unwanted newborns at a hospital with no questions asked. I personally would prefer laws that do not forbid abortion during the first seven weeks after conception, because I do not think that an embryo is sufficiently human to warrant protection by the state. But I am equally sure that anti-abortion laws do not necessarily implicate equal protection.

The reason why men should not be barred from getting abortions is not because men are superior to women, or because men deserve more rights than woman, but rather because men cannot and do not become pregnant. For the same reason, few women are in jail for forcibly inseminating or raping men, while lots of men are in jail for doing that to women; it’s not because women are superior to men and deserve more rights, but rather because women cannot and do not inseminate men. Biology dictates that men and women are not always similarly situated; sometimes this works against men, and sometimes against women. Balkin’s argument thus falls flat, and without it his Privileges or Immunities Clause argument falls apart….

Let’s turn now to the Privileges or Immunities Clause: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States….” Notice that this Clause only restricts the states, and does not restrict the federal government. And, obviously, something cannot be a privilege or immunity of citizens of the United States if, for example, Congress is constitutionally free to deprive people of that right (e.g. by banning abortion in the District of Columbia). Yet the federal government is free to do exactly that, unless (1) anti-abortion laws violate equal protection principles, and (2) those principles are applicable against the federal government. I have already shown that (1) is false, so there is no need to address whether (2) is false too (although I will note that many scholars have correctly argued that Bolling v. Sharpe could have and should have been decided on other grounds).

Professor Balkin’s Privileges or Immunities Clause argument is independently bogus for other reasons too. He fails to recognize that the Supreme Court case that was overturned by the Fourteenth Amendment (i.e. Dred Scott) revealed not only bitter divisions on the Court, but also revealed consensus among the judges about the meaning of the terms that Congress would subsequently employ in the Privileges or Immunities Clause. Although Dred Scott was decided in 1857, it was still very fresh on everyone’s minds when the Fourteenth Amendment was written and ratified in the latter part of the following decade. Both the main opinion and the lead dissent in Dred Scott agreed on some points that were completely undisputed. The main opinion in Dred Scott stated: “The powers of the [federal] Government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself.” And the lead dissent in Dred Scott, written by Justice Curtis, likewise stated: “[T]he privileges and immunities of general citizenship, derived from and guarantied by the Constitution, are to be enjoyed by….citizens of the United States.” No one on the Court disputed this notion that the privileges of a U.S. citizen are spelled out or derived from the Constitution itself, rather than comprising an amorphous body of statutory or law-professor-created rights like a right to abortion. And as explained above, there is no right , enforceable nationwide against Congress, to obtain an abortion, due to equal protection principles or any other principles.

Professor Balkin relies very heavily upon a congressional speech by Senator Jacob Howard of Michigan, who introduced the Fourteenth Amendment in the Senate (the lead Senate sponsor, Senator Fessenden of Maine, had taken ill). It is true that Howard’s speech was printed in several newspapers, but that speech obviously pales into insignificance compared to the extremely wide circulation and fame of the Dred Scott opinions. Moreover, Republicans like Howard relied upon a reading of article IV, section 2 of the Constitution that was “unorthodox” (as Professor Michael Kent Curtis has put it). Senator Howard believed that Article IV, Section 2 protected a body of national rights applicable against the federal government (“solely as a citizen of the United States and as a party in their courts”), and Professor Balkin correctly quotes Howard as saying that those rights “are not and cannot be fully defined in their entire extent and precise nature.” But Balkin neglects to mention that Howard admitted he had only “some intimation of what probably will be the opinion of the judiciary” regarding Article IV, Section 2. In fact, Howard disregarded pertinent judicial precedent, such as an 1833 circuit court decision by U.S. Supreme Court Justice Henry Baldwin, who described Article IV, Section 2 as merely, “a grant by the people of the state in convention, to the citizens of all the other states of the Union, of the privileges and immunities of the citizens of this state.” Justice Baldwin’s opinion in 1833 was correct, and the U.S. Supreme Court has taken basically the same stance for the past 140 years. Senator Howard very clearly spoke of the need to enforce only pre-existing constitutional rights against the states, and he simply mischaracterized what those rights were. Even Howard’s guess about the meaning of Article IV, Section 2 did not remotely allude to any abortion right enforceable against the federal government or against pro-life states.

Balkin also writes:

Because of two early decisions, the Slaughterhouse Cases and United States v. Cruikshank, the Supreme Court effectively wrote the privileges or immunities clause out of existence. In doing this, it nullified a central element of the new fourteenth amendment.

I agree that the reasoning in Slaughterhouse was atrocious, and that that case eviscerated the Privileges or Immunities Clause. But the actual decision in Slaughterhouse was 100% correct. The right at issue in that case was the supposed right to engage in a trade or profession. That right was not to be found anywhere else in the Constitution, it was not applicable nationwide against the federal government, and so the Court correctly declined to enforce it against the states. It was the rationale rather than the result that was crappy, and that ought be corrected.

Anyway, I’ve laid out why I think Professor Balkin’s argument is teraparsecs less than plausible. Perhaps he will agree. Here’s hoping.